Opinion
13-CV-5119 (JFB)(GRB)
04-22-2016
KIM GRIFFIN, Plaintiff, v. COMMERCIAL RECOVERY SYSTEMS, INC., Defendant.
ORDER :
Before the Court is a Report and Recommendation ("R&R") from Magistrate Judge Brown, advising the Court to dismiss the case pursuant to Federal Rule of Civil Procedure 41(b) based on plaintiff's failure to meaningfully prosecute the case and comply with court orders. The R&R instructed that any objections to the R&R be submitted within fourteen (14) days of service of the R&R. (See R&R, dated March 21, 2016, at 4.) The date for filing any objections has since expired, and plaintiff has not filed any objection to the R&R. For the reasons set forth below, the Court adopts the thorough and well-reasoned R&R However, the Court dismisses the action without prejudice (rather than with prejudice) for failure to prosecute pursuant to Rule 41(b).
Where there are no objections, the Court may adopt the report and recommendation without de novo review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings."); see also Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision."); cf. 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(3) (requiring de novo review after objections). However, because the failure to file timely objections is not jurisdictional, a district judge may still excuse the failure to object in a timely manner and exercise its discretion to decide the case on the merits to, for example, prevent plain error. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("[B]ecause the waiver rule is non jurisdictional, we 'may excuse the default in the interests of justice.'" (quoting Thomas, 474 U.S. at 155)).
Although plaintiff has waived any objection to the R&R and thus de novo review is not required, the Court has conducted a de novo review of the R&R in an abundance of caution and HEREBY ADOPTS the well-reasoned and thorough R&R. However, under the circumstances of this case - namely, that the complaint was never served - the Court finds that the lesser sanction of dismissal without prejudice (rather than with prejudice) is appropriate in order to strike the appropriate balance between the right to due process and the need to clear the docket and avoid prejudice to defendants by retaining open lawsuits with no activity.
IT IS HEREBY ORDERED that this action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. The Clerk of the Court shall enter judgment accordingly and close the case.
SO ORDERED.
/s/_________
JOSEPH F. BIANCO
UNITED STATES DISTRICT JUDGE Dated: April 22, 2016
Central Islip, New York